Owner by seizing the buck all but possessed it; but even here, when the animal is still capable of bolting as a wild animal might be expected to do, it is just as likely to regain its natural liberty as lose it. The defendant, seemingly on Owner’s behalf, raises another claim: that Owner in any event has a better right to the buck than does the plaintiff. This other claim is to the animal, as one on Owner’s land: A landowner has a right to start wild animals naturally on their land, ratione soli. However, here the animal was not naturally on Owner’s land, having been pursued there by the plaintiff Hunter. Moreover, if the buck bolted onto the land of a neighbor, instead of going onto the roadway, Owner’s right to it would likely end when Owner began his trespass onto the neighboring land—although this result would be stronger if the neighbor’s land was posted, warning off hunters and trespassers. So Owner’s claim to the animal by the landowner’s right fails. In any event, this is not an argument open to the defendant to make. Owner is no part of this litigation and his rights may be asserted in a future case. The defendant must win this one on his own merits, not on the weakness of the plaintiff’s.
Under the law of this state, it is an open and unsettled question as to whether the defendant interfered with the plaintiff’s or Owner’s hunt. This court need not resolve this issue, however, as the defendant, firing a fatal wound showing his intent to take the buck, was also the first to actually seize the animal. He has its possession to a degree that trumps the plaintiff’s, and so the plaintiff’s right to bring an action of trespass.
The plaintiff’s complaint is dismissed. Judgment reversed.
Livingood, J., dissenting. I respectfully dissent. If the plaintiff’s pursuit was an active one and the defendant had notice of it, I see no reason in law or policy why the defendant should be privileged to interfere with the plaintiff’s hunt. The plaintiff’s activity is a lawful one, the land through which it was pursued was unposted, and the plaintiff was in full view of the defendant when seizing the buck. The defendant’s interference is to me an event highly likely to result in a breach of the peace, even if it occurred by the side of a public road and did not disturb the rights of an abutting owner.
It might be said that the rule of actual possession laid down by the majority will give the law a crispness and ease of administration that is highly desirable where the public must know the rules of the hunt, but to my mind, the certainty of the law is in no way diminished if a pursuit in plain view of the defendant of a fatally wounded animal is found the equivalent of actual possession. The aim is the capture of the buck, and the animal must first be pursued in order to be captured; otherwise, hunters will go at it with ever more powerful rifles and guns, endangering us all. Finding a constructive possession in pursuit such as this will surely result in the capture of the buck, without the defendant firing an additional shot. That the additional shot prevented the buck from running onto a public roadway points out that, at the kill, the plaintiff had just as much right to be there as did the defendant.
Finally, if this suit fails as a proposition pled under the law of possession and property, I foresee it refiled as a tort suit in which the quantum of possession required may well be less and in which the plaintiff might well succeed. This being so, it seems to me that the law of property should conform itself to the expectations of the jury below.
I would affirm their verdict and the ensuing judgment of Judge Judd.